Levees.org founder Sandy Rosenthal has released the third of four excerpts from her upcoming book, Words Whispered in Water: Why the Levees Broke in Hurricane Katrina (Mango Publishing, August 2020).
The excerpt is called Go Ahead, Sue Me. It comes from Chapter 7; Figuring out the Allies.
Saturday, November 10, 2007, dawned sunny and cold, but windless. I put on my tennis clothes and headed to a tennis match with Debbie Cobb. Even during busy weeks, I refused to give up my precious exercise. After I returned, showered, and ate some lunch, I got back to my desktop computer and the ever-present incoming emails.
I noticed an email with the subject heading, “Cease and Desist Letter,” which was sent from an attorney representing the ASCE. The headmaster of Newman School was also copied. I opened the attachment and discovered that the ASCE didn’t like the Levee Spin 101 video very much and were ordering me to take it down from YouTube. After a lengthy description of the history of the ASCE, the letter ended with this: “… should you ignore this letter and continue to disseminate this defamatory material, please be advised that ASCE intends to take appropriate legal action to protect its interests.”[i]
This was a technical way of saying, “If you don’t stop, we will sue you.”
My initial reaction to this letter was that we must be on the right track! I thought it was quite remarkable that an in-house counsel attorney felt fine about harassing a fledgling grassroots group and a bunch of high-school kids. This was likely the first time in ASCE’s history that the society had to deal with negative press of this magnitude.
I wrote to ASCE’s in-counsel Tom Smith and told him that we would be in touch on Monday, November 12. Then, I disseminated the cease-and-desist letter to Cheron Brylski (my pro bono publicist), my advisors, the Levees.org board, and, of course, Dr. [Ray] Seed. All responded within minutes, including Paul Harrison, an attorney for the Environmental Defense Fund and an ally in Washington, DC.
Harrison remarked, “I’d expect that this would be an appealing pro-bono cause for one of the big guys.”[ii]
At midday on Thanksgiving Day (November 22, 2007), I saw one of the most important emails I would ever receive during my leadership with Levees.org. The three-day-old email had a subject heading, “the video fracas,” and it was from Samantha Everett, a California attorney who let me know that her firm, Cooley, had offices in Reston, Virginia — the same location of the ASCE headquarters.
Ms. Everett had received my email, forwarded from a Levees.org supporter, where I had explained that we didn’t have the resources to fight a lawsuit in Reston, Virginia. She wrote, “I’ll do everything I can to find you excellent, free legal assistance.”[iii]
Even though it was Thanksgiving Day, I responded immediately: “I am very interested in your offer. Though we have received a half-dozen offers of pro bono service, we had to acquiesce to the ASCE because if the ASCE sued, it would likely be in Reston VA. Clearly, your offer changes everything. …”[iv]
I forwarded Ms. Everett’s note to Martin Stern, who emailed back early the next morning (November 23, 2007). He said that Adams and Reese would be happy to partner with Cooley and that he would call Ms. Everett. In subsequent three-way phone conversations with the attorneys, we determined that the ASCE’s threat of a lawsuit had fit the legal definition of a strategic lawsuit against public participation (SLAPP). In other words, the ASCE’s threat of a lawsuit was intended to intimidate and silence us by threatening to burden us with the cost of a legal defense. Cooley, in partnership with Adams and Reese, was prepared to defend us by relying on anti-SLAPP legislation, which was designed to protect citizens like me from such abuse of power. The two attorneys asked me to take some time to think it about it since nothing was ever a sure thing.
Feeling that I needed some outside guidance, I reached out to Adam Babich with the Tulane Environmental Law Clinic whose mission was to assist nonprofit organizations like Levees.org. On Tuesday, December 11, 2007, I drove to the Tulane campus and met with the bespectacled man, who had thick, black hair touched with gray. He was already familiar with our case, and he advised me that, since we had gotten so much press, we had accomplished our goal, and that the best course of action was to not repost the video.
I replied without hesitation. “If the press you speak of was national press, like the New York Times, I might have followed that counsel. But this is the Times-Picayune! This is not what I consider significant press!”
I thanked Babich for his time and felt, for the first time, utterly certain that we would publicly and ceremoniously thumb our noses at the ASCE’s threat of a lawsuit and repost the video. All I needed was a time and place. I called Wendy Carlton, a Levees.org supporter who lived near the breach of the 17th Street Canal floodwall. Her family had just rebuilt their flooded home in the Lakeview neighborhood and the house was still bereft of furniture, making it a good venue for television cameras with plenty of space for invited guests.
Next, I called Martin Stern with Adams and Reese and told him that it was a go. Levees.org would repost Levee Spin 101 on YouTube at a press conference on Friday, December 14, 2007, at 10:30 a.m.
The next day (December 12, 2007), Ms. Everett sent a letter to Tom Smith, the ASCE’s in-house counsel. The letter told Smith that his November 10 letter to Levees.org, copying Isidore Newman School, was an attempt to bully a small nonprofit organization out of exercising its First Amendment rights and that Levees.org would repost the video to YouTube in two days. The short letter closed with this statement: “… we believe that the Anti-SLAPP statute of Louisiana will apply to this case. Please be aware that should you file suit against Levees.org, we will vigorously pursue a judgment against ASCE for all of the fees and costs incurred by this Firm and Adams and Reese, LLP.”[v]
On the same day (December 12, 2007), I issued a press release to local and national media announcing our plans. Christi Lu, a staffer with the Army Corps’ New Orleans District Public Affairs Office, intercepted my press release and forwarded it to the top of the chain: the Army Corps headquarters in Washington, DC.[vi]
The next day (December 13, 2007), Steven Wright, also with the New Orleans office sent an urgent message to three staffers in the DC office (Eugene Pawlik, Suzanne Fournier, and Gregory Bishop): “This is a national Corps issue and requires a USACE level response to query. Should you get media calls on this subject please refer callers to Mr. Gene Pawlik 202-761-7690.”[vii]
Meanwhile, Pawlik forwarded the email to Joan Buhrman, an ASCE spokesperson in Reston, and asked her, “Do you have any information that we might be able to share with our leaders if they ask?”[viii]
Pawlik’s “leaders” would be none other than Donald Rumsfeld, the U.S. Secretary of Defense.[ix]
On Friday, December 14, 2007, reporters and camera operators for every television station in town showed up in addition to the Times-Picayune and WWL (AM) radio. Flanked by attorneys from Adams and Reese — Martin Stern and Lauren Delery — the press conference began.
I started with a recap of why Levees.org partnered with Isidore Newman School to create the satirical video spoofing the cozy relationship between the Army Corps and the ASCE, an elite trade group. I then discussed the threat of a lawsuit by the ASCE to silence us. The legislative director from Levees.org, Vince Pasquantonio, spoke for a few minutes on the need for a truly independent levee investigation. Then, with camera crew in tow, I walked upstairs to Ms. Carlton’s home office, sat down at her desktop computer, and, with a click of a mouse, changed the status of Levee Spin 101 from private to public.
I stood up, turned to the cameras, and declared, “Today, Levees.org showed New Orleans, Louisiana, and the whole nation that the American Society of Civil Engineers shall not bully, shall not intimidate a little grassroots group and a bunch of high school kids out of exercising our First Amendment rights.”
That night, according to Harry Shearer, the story of our thumbing our noses at the powerful ASCE was the subject of every news media in town, including print, television, and radio. WWL-TV Channel 4 did its first-ever news story about our work. And, once again, the students from Ms. Bush’s U.S. Government and Politics course at Isidore Newman School were local celebrities.
[i] Letter from Tom Smith to the author, November 10, 2007. http://levees.org/wp-content/uploads/2010/11/Rosethal.ltr_.pdf.
[ii] Email from Paul Harrison to the author, November 11, 2007. http://levees.org/2/wp-content/uploads/2019/01/Email-from-Paul-Harrison-to-author-11-11-2007.pdf.
[iii] Email from Samantha Everett to the author, November 18, 2007. http://levees.org/2/wp-content/uploads/2019/01/Email-Samantha-Everett-to-author-11-18-2007.pdf.
[iv] Email from the author to Samantha Everett, November 22, 2007. http://levees.org/2/wp-content/uploads/2019/01/Email-author-to-Samantha-Everett-11-22-2007.pdf.
[v] Letter from Samantha Everett to Tom Smith, December 12, 2007. http://levees.org/wp-content/uploads/2010/11/Cooley-letter-to-ASCE.pdf.
[vi] Email from Lu Christi to USACE DC HQ, December 12, 2007. http://levees.org/2/wp-content/uploads/2018/12/Emails-in-DC-USACE-HQ-on-reposting-satire-to-YouTube-December-2007-1.pdf.
[vii] Email from Steven Wright to Eugene Pawlik, December 13, 2007. http://levees.org/2/wp-content/uploads/2018/12/Emails-in-DC-USACE-HQ-on-reposting-satire-to-YouTube-December-2007-1.pdf.
[viii] Email from Eugene Pawlik to Joan Burhman, December 12, 2007. http://levees.org/2/wp-content/uploads/2018/12/Emails-in-DC-USACE-HQ-on-reposting-satire-to-YouTube-December-2007-1.pdf.
[ix] Eugene (Gene) Pawlik’s LinkedIn profile states that he is currently Supervisory Public Affairs Specialist at the U.S. Army Corps of Engineers.